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Criminalization of Sex and Status: HIV, Gender Identity and Race
20th Annual State Criminal Justice Network Conference
August 18-20, 2021 | Held Virtually
This panel examines the continued criminalization of HIV and other health status, the undermining of the central principle that criminal intent be required for criminal liability, and efforts to reform these discriminatory laws.
- Content Page
Concerning HIV Criminalization
NACDL opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.
HIV Criminalization [webinar]
Presented by Dr. David Wohl, Professor of Medicine in the Division of Infectious Diseases at the University of North Carolina; and Stephen Scarborough, criminal defense attorney, Atlanta, GA
Supported by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance
State of Ohio v. Batista
Brief of Amici Curiae The Center for HIV Law and Policy, The American Academy of HIV Medicine, GLBTQ Legal Advocates and Defenders, GLMA: Health Professionals Advancing LGBT Equality, Human Rights Campaign, The National Association of Criminal Defense Lawyers, The National Center for Lesbian Rights, The Office of the Ohio Public Defender, and Treatment Action Group on Behalf of Appellant Orlando Batista.
Argument: R.C. 2903.11(B)(1) ("The Act") violates the constitutional guarantee of equal protection. Equal protection forbids arbitrary, irrational classifications. The Act singles out people living with HIV for differential treatment. The Act cannot survive rational basis review. The Act's classification is arbitrary because it is over-inclusive. HIV-specific criminal laws are empirically proven to have no effect on the spread of HIV. Criminalization of nondisclosure is counterproductive. The absence of any rational basis for the Act suggests unlawful animus. The Act violates prohibitions against discrimination on the basis of disability.
State of Ohio v. Batista
Memorandum in Support of Jurisdiction of ACLU of Ohio Foundation, Inc., Center for HIV Law and Policy, Ohio Association of Criminal Defense Lawyers, Ohio Public Defender, Cuyahoga County Public Defender, National Association of Criminal Defense Lawyers, Center for Constitutional Rights, National Center for Lesbian Rights, Human Rights Campaign, GLBTQ Legal Advocates and Defenders (GLAD), National LGBTQ Task Force, Gay and Lesbian Medical Association, American Academy of HIUV Medicine, Treatment Action Group, Nueva Luz Urban Resource Center as Amici Curiae in Support of Appellant.
Argument: R.C. 2903.11(B)(1) violates the Equal Protection Clauses of the United States and Ohio Constitutions. R.C. 2903.11(B)(1) violates the Free Speech Clauses of the First Amendment and of Section 11, Article I, Ohio Constitution. R.C. 2903.11(B)(1) violates prohibitions against discrimination on the basis of disability.